Recently in Child Custody Category

California Court Says Child Entitled to Lawyer in Her Parents' Custody Spat - In re Marriage of Metzger

July 7, 2014, by

If you watch a lot of TV crime dramas, you may already be familiar with a criminal defendant's right to an attorney, and, of course, the person's right to be told that he or she is entitled to an attorney. In fact, the right to seek legal counsel is important in a wide variety of litigation contexts, including divorce and other related proceedings. In In re Marriage of Metzger, California's Fourth District Court of Appeals explains that the right to counsel may also extend to a child who is the subject of a custody dispute among parents.

my-shadow-937478-m.jpgHusband and Wife were married in November 2003 and had a daughter, M, one year later. Wife filed a petition to dissolve the marriage in June 2009. Following a number of delays, extensions, and squabbles over depositions, and autism screenings for M, the trial court granted the dissolution and scheduled a separate trial on the issue of child custody in 2012.

Over Husband's opposition, the lower court later issued an order appointing a lawyer to represent M in the proceedings and obligating Husband to advance $100,000 for the attorney's retainer, an amount the trial judge said should ultimately be reimbursed from the spouses' community property. The trial court said the move was justified by Wife's concerns about whether the child might be autistic. Husband had previously dismissed the concerns as delay tactics, while Wife argued that M showed some signs of developmental delay. The trial judge said M was caught in the middle of the debate and "needs someone to speak for her."

Continue reading "California Court Says Child Entitled to Lawyer in Her Parents' Custody Spat - In re Marriage of Metzger" »

Co-Parenting During the Holidays

December 2, 2013, by

Even for happily married and intact families, the holidays can be fraught with conflict and compromise. But for divorced or separated parents and for blended families - the potential for conflict is much greater. Negotiating co-parenting agreements and sharing time with kids is rarely easy, but this is a time of year when it can be most difficult to let go because of the tradition and ritual around the holidays.

But for the sake of the kids you have to share it. And here are tips to
 help your holiday season be filled with merriment - not resentment.

Make a plan

 If you don't already have a holiday schedule, and do it now, the earlier the better. You don't want to create anxiety for the kids about what they're going to be doing at Christmas. Sit down with your ex and a calendar to determine how you will share time. The plan can be fluid and can change, but a basic structure reduces miscommunication and sets expectations. Ideally, a vacation and holiday schedule will be part of a marital settlement agreement in a divorce. Think about the even year - odd year compromise. One parent gets first choice in even years and the other in odd years or simply switch the holiday time on an alternating year basis. For example, in even years one parent may have the children for Christmas Eve and morning, then take them to the other parent at noon. In odd years, the schedule would be reversed. It might also be worthwhile to review the kids Christmas presents together to avoid duplicate gifts and to ensure that similar amounts will be spent. For co-parents who live far away from each other it's not so easy. If you have to be without your kids for the entire holiday make sure you can call and talk to them.

Focus on the kids

. As a mediator who helps couples resolve parenting and custody issues, I sometimes have a photo of the kids on the table during a session and ask: "What do you think they would really enjoy? What would work for them?"

That can be as simple as letting the kids call mom on Christmas Eve or attend a special holiday event with Dad. For mom Penny Barton, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in San Jose with their dad while Barton took a job in Los Angeles. Penny did homework with them every night over the phone and flew back to San Jose for six to eight days every month. 

Because Christmas was so important to the girls the parents agreed that for two weeks every Christmas, Penny would camp out in her ex-husband's basement - once with her boyfriend in tow. "I sort of took over and did Christmas the same way we did when we were married," said Barton. It wasn't easy being a guest in her former home, and her need to impose her way of doing things on her ex's household created tension. "But Christmas morning was child-centered, and we both enjoyed their joy so much, that how we felt about each other didn't much matter," says Barton. "We didn't want them to experience the tension kids who are pulled between two households feel."



And although children's preferences should always be an important consideration, it is also important not to give them too much input into co-parenting decisions. The burden of choice is problematic for kids because they know their choices will make one of the parents unhappy. And for most children, that is not a good place to be. Kids will often tell each parent whatever they believe he or she wants to hear. Kids need a predictable schedule that both parents seem happy with, even if that means putting on a brave face. Practice emotional restraint, maturity and leadership. The most important thing is to continue to be loving parents, and to keep the conflict away from the kids.



Create new traditions. 

Your holiday celebrations may change after divorce, but they can still be wonderful. Think together with your kids about how you want to celebrate the holidays. And though it will be painful, be prepared to let go of some of the activities you used to do. Don't make the kids feel bad that they missed out on something when they come home.

 And no matter how sad or angry you are, never badmouth your ex in front of the kids. Save that for a good friend, therapist or support group. 



Stay busy. 

If you're going to be on your own for the holidays, be prepared and plan for it. Maybe it would help to celebrate with other family and friends, or perhaps a quiet evening at home with a special meal. Or venture out and volunteer to help others, go on a trip or do something else special for yourself.

Stay hopeful. 

It is the best gift you can give yourself and your loved ones. Make the commitment to take the time that's needed to heal and remember that healing is a process, so give yourself the time and space to find hope and healing.

And if you cannot agree on the holiday plan, consider a mediator. A mediator is like a referee or better yet, your kindergarden teacher: someone who will help you share and play nicely in the sandbox, or in this case the mediator's office.

As a mediator, it is important to practice what we preach and walk the talk. So, I invite my husband's ex-wife and her husband over for Christmas so that their kids can be with both of their parents. But sadly, this is not a viable solution with my own ex-husband, so we have to share the kids separately. Every family is different but with an open mind and an open heart and a willingness to try to understand each other, parents can create positive solutions.

For more information, visit us at www.lornajaynes.com

Court OKs Custody for Mother Living with Nudist Grandparents - In re Marriage of Meyer

November 13, 2013, by

California custody determinations often turn on the well being of the child, leaving courts to determine whether a particular living situation is suitable for a child's physical, mental and emotional security and development. Recently, the state's First District Court of Appeals took on a unique version of this question when it was asked to decide whether living with a grandmother and her boyfriend who are practicing nudists is detrimental to children. At least in this case, the answer was "no."

888677_sexy_feet__1.jpgIn re Marriage of Meyer involves spouses Wendy and David, who were married in 2000, and their two daughters. The kids were ages ten and four when David, who had become estranged from his wife, filed a petition seeking sole legal and physical custody, with visiting rights for Wendy, in November 2010. One month later, Wendy took the girls out of school and moved with them from the family's home in Castro Valley to her mother's apartment in Fairfield.

At a hearing in March 2011, the couple gave differing versions of two events involving alleged physical abuse. Wendy asserted that David was the aggressor in two physical confrontations, which took place in 2002 and 2008, as well as during a number of other incidents. An Alameda County police officer backed up this version of the events, testifying that he arrested David for the 2008 incident after arriving at the scene and interviewing both spouses as well as their oldest daughter. According to the officer, Wendy had injuries consistent with domestic violence and the daughter essentially corroborated her version of the events.

David, on the other hand, argued that Wendy was the aggressor on both occasions and that he simply tried to defend himself from her attacks. Further, according to David, the living situation in Fairfield was detrimental to the girls because Wendy's mother and her boyfriend were nudists and lived in "Section 8" public housing in a bad neighborhood. He also argued that the girls had been harmed by being uprooted from their school and social circles and that he did not get to spend as much time with them following the move to Fairfield.

The trial court awarded Wendy full legal and physical custody of the children with David having weekly visits and phone calls. The court said there was no evidence that the girls' current living arrangement was "anything but wholesome or presented any type of danger."

Continue reading "Court OKs Custody for Mother Living with Nudist Grandparents - In re Marriage of Meyer" »

California Court Says Child's Best Interests Served by Equal Co-Parenting Plan - In re Marriage of Erb

June 4, 2013, by

The ultimate goal in resolving child custody and co-parenting issues is to reach a resolution that is in the best interests of the child. In In re Marriage of Erb, California's Fourth District Court of Appeals explained that sometimes that means limiting the amount of contact former spouses have with each other.

1162764_daddy.jpgMother and Father were divorced in February 2004. The parties agreed that they would share legal custody of their then two-year old daughter (Daughter) and that Mother would have primary physical custody over the child, while Father would keep visitation rights.

Four years later, Father asked that the arrangement be changed so that Daughter would spend Wednesday nights with him and that his time with her be increased gradually until both parents shared equal time. A trial court agreed to increase Father's time with Daughter to a more limited extent. Mother retained primary physical custody.

Following further litigation, however, the trial court agreed to a co-parenting plan submitted by Daughter's independent counsel in June 2011. The plan provided for equal sharing of time with Daughter by Mother and Father under a "2-2-5-5" arrangement. Mother got two days with Daughter, Father got the next two days, then Mother got five days with Daughter and Father got the next five days.

Based largely on input from Daughter's attorney - who interviewed Mother, Father, Daughter, her step-parents and a number of other family members - the trial court ruled that it was in Daughter's best interests to put an end to the contentious litigation between her parents that had then been going on for seven years. "[W]e can't go on like this," the court said simply. It noted that the 2-2-5-5 plan would both add stability to Daughter's everyday life and limit the number of exchanges between Mother and Father in an effort to avoid further disputes.

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California Court Denies Custody to Mother, Citing Her Efforts to Alienate Father from Child

April 23, 2013, by

"This case presents an issue that would vex Solomon himself." That's how the Fourth District Court of Appeals described In re Marriage of Keith, a child custody case that ultimately turned on the parents' efforts (or lack thereof) to facilitate their daughter's relationship with each other.

1064479_father_and_daughter.jpgHolly and Keith married in 2004, had a child (Daughter) in 2005 and separated a year later. Unbeknownst to Keith, Holly and Daughter then moved to Arizona. Holly also obtained a restraining order against Keith, accusing him of physical abuse. An Orange County court later order quashed the restraining order and required her to return to California.

Back in California, a court granted Holly a new restraining order against Keith as well as sole legal and physical custody of Daughter. Keith completed a court-ordered batterer's intervention program and was permitted monitored visits with Daughter. After the couple divorced in 2008, Holly sought permission to move back to Arizona with Daughter. Keith opposed the move, claiming that Holly had sought to isolate him from Daughter and destroy their relationship, first by claiming that he had assaulted Holly, then by moving "surreptitiously" from Irvine to La Quinta and finally by seeking to move to Arizona.

In a child custody evaluation completed prior to trial, Dr. W. Russell Johnson recommended that Holly be granted primary physical custody - with Keith being granted "liberal" visitation rights - if she remained in California. If Holly were to move Arizona, however, Johnson concluded that Keith should be granted primary physical custody. In the latter situation, "[Daughter]'s best interests require that she be placed in her father's physical custody because he is more likely than her mother to support her relationship with her non-residential parent," Johnson determined. The trial court granted Keith primary physical custody.

The Fourth District affirmed the decision on appeal. The court explained that a trial court considering a custody issue has "the widest discretion to choose a parenting plan that is in the best interest of the child," but must weigh the health, safety, and welfare of the child, as well as any history of abuse by one parent of the other. Because Holly had obtained a restraining order against Keith, the court said that there was a presumption that granting her primary physical custody was in Daughter's best interest. Keith rebutted this presumption, however, by showing that he had completed the batterer's intervention program and had not been accused of physical violence since that time.

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Ethically challenged client and California divorce attorney trick ex-husband into drunk-driving after setting him up with hot-tub blonde on Match.com

March 4, 2013, by

As a new family law attorney my very first litigation matter involved a client whose spouse's attorney was the (now disgraced) Mary Nolan. It was a horrific experience for me and I ultimately told my client that he needed to retain a different kind of attorney - the quintessential 'shark' litigator, if he was going to survive this divorce with Ms. Nolan on the other side. The great benefit that I derived from this experience is that I learned very early how ugly divorce could be, that the traditional process did not work for me or for the clients. I knew there had to be a better way.

A six-count indictment on September 18, 2012 charged Mary Nolan with tax evasion and unlawfully intercepting communications. Recently, Ms. Nolan pled not guilty to charges that she hired a private investigator, who was a central character in Contra Costa County's "dirty DUI" scandal, to illegally install listening devices inside the car of a client's ex-husband.

Mr. David Dutcher, from Contra Costa County, challenged a custody ruling he claims was based on a DUI charge that occurred after his ex-wife paid a blonde woman to trick into drunk driving. Mr. Dutcher said he was arrested and pulled over for drunken driving in 2008 shortly after he was propositioned by two young women to come home with them and 'continue things in the hot tub'.

Mr Dutcher was on a second date with a woman he had met on Match.com, when she started chugging shots of hard alcohol and kissing him on the lips.
A second blonde showed up and they both flashed their breasts, before asking him to join them at home in the hot tub.

But just after leaving the restaurant, Mr Dutcher was pulled over for drunken driving with a blood alcohol content of 0.12 per cent, above the legal limit of 0.08 percent. Shortly after his conviction, his ex-wife's lawyer, Ms. Nolan, filed a motion in court seeking to reduce his time with the children (and increase his ex-wife's child support). Ms. Nolan claimed to have inadvertently learned of Dutcher's drunken-driving episode and wanted to make the court aware of his run-in with the law. A judge then reduced the amount of time he could spend with his children because of his arrest. Mr. Dutcher has argued that his ex-wife orchestrated his arrest to gain advantage in the divorce case.

In another complaint filed in Contra Costa County Superior Court, Declan Woods of Clayton alleges that Mary Nolan was looking for an advantage for her client, Woods' estranged wife. and hired Butler to set up Woods to be arrested for drunken driving.

Not surprisingly, in my case with Ms. Nolan, her trumped up allegations of domestic violence were very detrimental to my client and their five children who were only permitted to see each other through supervised visitation. This was a family of relatively modest means whose assets were quickly depleted by Ms. Nolan's fee churning antics. And although the wife surely did not recognize it at the time and maybe still doesn't, Ms. Nolan's conduct was also detrimental to her since it resulted in an unnecessarily emotionally and financially burdensome process. And nor did her attorney encourage a positive and supportive co-parenting relationship, the touchstone of a good divorce.

But I was inspired to find a new and better way to help couples divorce and and trained in Collaborative Law and Mediation so that I could escape "the machine" and help couples divorce with their personal and economic dignity intact. To learn more about how to end your marriage with your personal and economic dignity intact, contact the Law and Mediation Office of Lorna Jaynes.

Divorce Your Spouse, But For the Sake of Your Children, Create or Preserve a Positive Co-Parenting Relationship

February 16, 2013, by

A judge from the state of Minnesota, Michael Haas, said the following in 2001.

"Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is your problem and your fault.

No matter what you think of the other party - or whatever your family thinks of the other party- these children are one-half of each of you. Remember that, because every time you tell your child what an "idiot" his father is, or what a "fool" his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.

That is an unforgivable thing to do to a child. That is not love. That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.
I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer."

Wise words from a judge, but the sad part is that by the time a judge makes comments of that nature, the damage has been done. Sadly, many parents do not understand long-term impacts their divorce has on children and they are so focused on themselves that only a very small percentage have constructive divorces such through mediation or Collaborative Divorce. The nature of the parents' relationship, pre and post-divorce, permanently impacts children.

See the work of Judith Wallerstein, a psychologist who triggered a national debate about the consequences of divorce by reporting that it hurt children more than previously thought. Much of the damage, however, can be mitigated by conscious parents who divorce with care and compassion.

A successful co-parenting arrangement depends on the child, the parents, and how the parents treat each other and their children. It matters whether the arrangements accurately reflect the needs and wishes of the child, but at the same time, the choices should not generally be left up to the children as that puts them in a very difficult place. It's a complex undertaking. What works for a child at one age may be harmful to the same child at another developmental stage. One size can never fit all children or families. Children who are required to traverse a battleground between warring parents show serious symptoms that affect their physical and mental health. The research findings on how seriously troubled these children are and how quickly their adjustment deteriorates are very powerful. The bottom line that our studies show is that the legal form of custody is not what matters in the child's welfare. Nor is there any study that shows the amount of time spent with a parent is relevant to psychological adjustment. 

Parents who spend thousands of dollars in legal fees to fight over the merits of joint or sole custody of their child are simply wasting their time and money. Litigation does not constructively address the emotions involved. Rather, it adds fuel to the fire. No model of custody or time-sharing determines how well children do after their parents' divorce. Joint custody can work very well or poorly for the child. The same is true of sole custody with visitation. What matters is the mental health of the parents, the quality of the parent-child relationships, the degree of anger versus cooperation between the parents, plus the age, temperament, and flexibility of the child.

Divorce education and appropriate dispute resolution such as Collaborative Divorce and mediation can help parents do less destructive things to their children during and after the divorce. With offices throughout the San Francisco Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve many family law disputes without the bitterness and acrimony engendered by the adversarial process.

Who Decides Custody Issues When Parents Live in Different States? In re T.J.

January 1, 2013, by

In a recent ruling in the matter of In re T.J., the Second District Court of Appeals tackled an important question that often arises in California child custody cases: which court has jurisdiction to consider a custody matter when the parents live in different states?

659603_-us_map-.jpgRJ and AJ married in Texas in 2001 and had a son, TJ, two years later. The couple split in 2004 and AJ moved to New Jersey with the child. The parents obtained a divorce in Texas in 2007. Through mediation, they reached a custody agreement under which AJ was declared the "Sole Managing Conservator" of T.J., with the right to decide his primary residence while RJ was given detailed visitation rights. RJ talked to TJ over the phone regularly and the child spent long stretches of the summer in Texas with his father.

After living together in New Jersey for several years, AJ and the child moved to California in 2011. The move was in part intended to help AJ cope with depression, her thinking being that the weather and a location change would improve her general mood. A few months after the move, however, AJ checked herself into a clinic with depression and thoughts of suicide. A hospital social worker referred TJ to the L.A. Department of Children and Family Services because AJ was unable to make other arrangements for him while she was being treated. AJ later completed her treatment.

The Department filed a petition in state court pursuant to Welfare and Institutions Code section 300, which gives courts jurisdiction to ajudicate matters concerning a minor child who has suffered or is at substantial risk of suffering "serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child." RJ then filed a motion seeking custody. The court later ordered that TJ be placed in his mother's home under Department supervision.

On appeal, the Second District reversed the decision, finding that the lower court lacked jurisdiction to issue it. The Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted as law in both California and Texas, "is the exclusive method for determining the proper forum in custody cases involving other jurisdictions and governs juvenile dependency proceedings," the court explained. Because the original decision regarding TJ's custody was rendered by the Texas court, that court maintained exclusive jurisdiction under the UCCJEA to decide any further custody-related issues.

Continue reading "Who Decides Custody Issues When Parents Live in Different States? In re T.J." »

Co-Parenting During the Holidays

December 20, 2012, by

Even for happily married and intact families, the holidays can be fraught with conflict and compromise. But for divorced or separated parents and for blended families - the potential for conflict is significantly higher. Negotiating co-parenting agreements and sharing time with kids is rarely easy, but this is a time of year when it can be most difficult to let go because of the tradition and ritual around how the holidays are managed.

But for the sake of the kids you have to share it. And here are tips to
help your holiday season be filled with merriment - not resentment.

Make a plan


If you don't already have a holiday schedule, do it now. You don't want to create anxiety for the kids about what they're going to be doing at Christmas. Sit down with your ex and a calendar to determine how you're going to share time during the holiday break. The plan can be fluid and can change, but a basic structure reduces mis-communication and sets expectations. Ideally, a vacation and holiday schedule will be part of a marital settlement agreement in a divorce. Think about the even year - odd year compromise. One parent gets first choice in even years and the other in odd years or simply switch the holiday time on an alternating year basis. For example, in even years one parent may have the children for Christmas Eve and morning, then take them to the other parent at noon. In odd years, the schedule would be reversed. Often it is worthwhile to go over the kids Christmas presents together to avoid duplicate gifts and to ensure that similar amounts will be spent. For co-parents who live far away from each other it's not so easy. If you have to be without your kids for the entire holiday make sure you can call and talk to them.

Focus on the kids


As a mediator who helps couples resolve parenting and custody issues, I sometimes have a photo of the kids on the table during a session and ask: "What do you think they would really enjoy? What would work for them?"

That can be as simple as letting the kids call mom on Christmas Eve or attend a special holiday event with Dad. For mom Maureen Palmer, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in Edmonton with their dad while palmer took a job as a TV producer in Vancouver. She'd do homework with them every night over the phone and fly back to Alberta for four or five days twice a month (a schedule she kept up for a decade).

"Christmas was very, very big in our family," she says, and her girls weren't ready to let that go. So for two weeks every Christmas, she would camp out in her ex-husband's basement - once with her boyfriend in tow. "I sort of took over and did Christmas the same way we did when we were married," said Palmer, who went on to make the documentary How to Divorce and Not Wreck the Kids. It wasn't easy being a guest in her former home, and her need to impose her version of "order" on her ex's household created tension. "But Christmas morning was child-centered, and we both enjoyed their joy so much, that how we felt about each other barely registered," says Palmer. "We didn't want them to feel any of the tension kids who are pulled between two households feel."



As for me, well I am having my partner's ex-wife and husband over for Christmas so that their kids get to be with both of their parents.

And although children's preferences should always be a priority, it is also important not to them too much input into how they spend the holidays. The burden of choice is problematic for kids "because they know it's going to make one of the parents really unhappy. Kids will often tell each parent whatever they believe he or she wants to hear. And for most children, that is a terrible place to be. Kids need a predictable schedule that both parents seem happy with, even if that means putting on a brave face. Practice emotional restraint, maturity and leadership. The most important thing is to continue to be loving parents, and to keep the conflict away from the kids.



Create new traditions


Your holiday celebrations may have changed after the divorce, but they can still be wonderful. Think together with your kids about how you want to celebrate the holidays. And though it will be painful, be prepared to let go of some of the activities you used to do. Don't make the kids feel bad that they missed out on something when they come home.

And no matter how sad or angry you are, never badmouth your ex in front of the kids. Save that for a good friend, therapist or support group. 



Stay busy


If you're going to be on your own for the holidays, be prepared and plan for it. Maybe it would help to celebrate with other family and friends, or perhaps a quiet evening at home with a special meal. Or venture out and volunteer to help others, go on a trip or do something else special for yourself.

Stay hopeful


It is the best gift you can give yourself and your loved ones. Make the commitment to take the time that's needed to heal and remember that healing is a process, so give yourself the time and space to find hope and healing.

And if you cannot agree, consider a mediator. A mediator is like a referee or better yet, your first grade teacher: Someone who will help you play nicely in the sandbox, or in this case the mediator's office, and hopefully just long enough to make a deal.

For more information, visit us at www.lornajaynes.com

California Court Says Father Abandoned Children, Despite Continuing to Pay Support - In re C.C.

November 28, 2012, by

The Court of Appeals for California's Fourth District recently explained in In re C.C. that a parent can be found to have abandoned his or her children for custody purposes, even if the parent continues to pay child support.

1365636_streaming_sunset.jpgCharles and Misty were married in Pennsylvania in April 2001, less than a year after the birth of their first child, M.C. The couple later had another child, C.C., before divorcing in 2005. Misty was granted primary custody of the children, while Charles was ordered to pay $500 a month in support and awarded regular visitation.

Misty later married Eric and, in 2007, a Pennsylvania court granted her permission to move with the children to San Diego, where Eric was stationed in a military position. Eric, who had contributed financial support for the children since 2006, later filed a petition in California seeking to free the children from Charles's custody and control on the ground of abandonment. Eric also requested to adopt the children as a stepparent.

Charles fought the petition in a 2011 hearing, arguing that he had been unable to communicate with the children via weekly video conferencing ordered by the Pennsylvania court because he and Misty could not agree on the specific type of conferencing required. Specifically, he argued that his computer webcam was not compatible with the equipment Misty used and that she would not pay for him to get an upgrade. He also alleged that Misty did not tell him about the move until months after it happened, refused to make the children available by phone and did not provide a mailing address.

M.C., now 10 years old, testified at trial that he loved and wanted to be adopted by his "dad" Eric. M.C. also remembered Charles, but said he had not seen his father since 2005 or 2006. The trial court observed M.C. was "obviously very attached" to Eric, while C.C. referred to Eric as "daddy," and had no memory of Charles. The court also noted that Charles took no action to try to resolve his alleged inability to communicate with the children from 2007 to 2010, and made only token attempts to contact them during this time. As a result, the court granted Eric's petitions.

Continue reading "California Court Says Father Abandoned Children, Despite Continuing to Pay Support - In re C.C." »

Happy Outcomes in California Mediated Divorce

April 10, 2012, by

At my favorite local restaurant last weekend I recognized a former divorce mediation client. She did not recognize me as I was dressed in early 19th century garb for a historical event. As I approached her table to say hello, I saw that she was with her former husband, also my client, and their two children.

Since it was a busy Sunday morning brunch in the restaurant and they were with their two young children, it felt inappropriate to inquire about the nature of their dining together. But I have to assume that it was one of two possibilities: (1) either they had reconciled, or (2) they were enjoying a post-divorce family brunch.

I suspect it was the latter, but either way, both are positive and wonderful outcomes that, in my opinion, would almost never occur had the divorce been a contested/litigated one.
This client, pleased with the mediation process, later referred a colleague of hers to me. When I met with the prospective client and her husband I asked, as I often do, what were the hopes and goals of each for themselves, their spouse and their children. The woman responded that she did not care what happened to her husband and did not want him to have any meaningful time with their children. This should have been a big red flag for me that perhaps mediation was not a suitable process for her.

What I should have said to the prospective clients and in particular the wife is that mediation may not be the right choice since it requires more honesty and fair-mindedness and the ability to value post-divorce family relationships than she might be capable of.

Not surprisingly, the case fell apart shortly thereafter and the parties retained litigation counsel and well over a year later, are still battling. Instead of working together to create a good outcome for all, they are presumably paying opposing attorneys to draft disparaging briefs as to the parenting skills and abilities of the other, which may or may not include false accusations and parental alienation, and filing and serving and complying with costly discovery requests rather than simply exchanging the requisite financial information required in any divorce, and the children are surely bearing the brunt of all this negativity.

My mediation clients who dined together on the other hand, even though there was considerable conflict and disappointment at the beginning, learned to see the divorce as a problem to be solved rather than a battle to be won, and learned to focus on creating a new family model for the benefit of their children. Together they worked in mediation to complete their financial disclosures, ascertain the nature of separate/community property and divide the property equitably. Together they discussed and decided how to co-parent and financially support their children, and in the process created a positive, respectful and supportive co-parenting relationship, indeed a positive, respectful, and supportive new family structure that enables joint outings like this that are sure to benefit their children tremendously.

I felt proud and satisfied that I was able to facilitate a process that enabled both clients and their children to enjoy each other's company together as a divorced and still happy family.

For more information, visit us at www.lornajaynes.com

Childhood Obesity in California Custody & Vistation Disputes

March 29, 2012, by

According to the Centers for Disease Control and Prevention, approximately 17%, or about 12.5 million, of the nation's children and teens are obese. Since 1980, according to CDC statistics, obesity rates have nearly tripled.

Should parents of extremely obese children lose custody for not controlling their kids' weight? An article by Dr. David Ludwig in the Journal of the American Medical Association answers in the affirmative, and joins ranks with others who believe the government should be allowed to intervene in extreme cases and that putting children in foster care may be better and more ethical than obesity surgery.

Roughly 2 million U.S. children are extremely obese and though most are not in any imminent danger, many have obesity-related conditions such as Type 2 diabetes, breathing difficulties and liver problems that could kill them by age 30. It is these kids for whom state intervention, including education, parent training, and temporary protective custody in the most extreme cases, should be considered, according to Dr. Ludwig.

Dr. Ludwig states that this is not to blame parents, but rather to act in the children's best interest and get them help that for whatever reason their parents are unable to provide. Others argue that this debate blames parents when childhood obesity is more likely due to advertising, marketing, peer pressure, the suburban environment - things a parent cannot control.

As lamented by the eminent social critic, James Howard Kunstler, "Our towns have committed ritualized suicide in thrall to the WalMart God. Most Americans live in suburban habitats that are isolating, disaggregated, and neurologically punishing, and from which every last human quality unrelated to shopping convenience and personal hygiene has been expunged. We live in places where virtually no activity or service can be accessed without driving a car, and the (usually solo) journey past horrifying vistas of on-ramps and off-ramps offers no chance of a social encounter along the way. Our suburban environments have by definition destroyed the transition between the urban habitat and the rural hinterlands. In other words, we can't walk out of town into the countryside anywhere. Our "homes," as we have taken to calling mere mass-produced vinyl boxes at the prompting of the realtors, exist in settings leached of meaningful public space or connection to civic amenity, with all activity focused inward to the canned entertainments piped into giant receivers -- where the children especially sprawl in masturbatory trances, fondling joysticks and keyboards, engorged on cheez doodles and taco chips."

Maybe that is an extreme characterization, although I think not, but either way, there is no doubt that our children are becoming increasingly obese, and this debate provides much fodder for high-conflict divorcing parents and their hired gun litigators with accusations about their children's weight and nutrition in an effort to convince judges that the other parent is inadequate.

Child custody and visitation battles have always been ugly. But now obesity is increasingly added to the mix of diatribes and aspersions cast from one parent to the other. The specifics vary. Sometimes it is a grossly overweight child and allegations that soft drinks and fast food comprise the child's primary diet. Or perhaps, it is that the other parent is too obese to parent effectively.

Also, a few high profile news events have illuminated the obesity-and-custody issue. In 2009, a 555-pound, 14-year-old South Carolina boy was removed to foster care after his mother was arrested and charged with criminal neglect. The state's Department of Social Services had determined that without state intervention, the boy was at risk of serious harm.

For judges in many states and in California, the question of custody turns on one issue: What is in the best interest of the child? The trend toward shared custody and child-support arrangements often turn on the relative strengths and weaknesses of each parent, so custody battles have become more contentious, since, unfortunately, it seems that people can always find another thing to fight over. How sad when it is their children.
To help judges, some states have added specific criteria to look at when considering the best interests of a child, such as to what degree is a child exercising and eating well. More fodder for the fight.

But parents in a Collaborative Divorce that includes a full team, divorce coaches and a child professional, can benefit from the child development advice and expertise to learn how to co-parent and communicate well and support each other in promoting the best possible physical and emotional health and well being of their children. So maybe it won't change the physical environment articulated so well by JH Kunstler, but at least families can work together to hopefully, limit the toxic effects of that environment.

For more information about this or any other family law matter, please contact Lorna Jaynes by calling (510) 795-6304, or visit the website at www.lornajaynes.com.

California's Child Custody and Relocation Laws Make it Possible for Parents to Move Away With Their Children.

February 5, 2012, by

Since Americans both divorce and move in significant numbers it is no surprise that move-away and relocation issues between divorced parents arise frequently.

The consequences of a move-away case can profoundly impact both the parents and their children and the cases are far more conflicted than the typical high-conflict child custody dispute where the parents fight over the amount of time each will have with the children. The children, caught in the middle of their parents' battle, often feel pressured to choose between their parents, and even when there is not such a choice, the children's relationship with the non-custodial parent is often changed forever.

In 1996, the California State Supreme Court in Burgess v. Burgess made it much easier than it had been for primary custodial parents to move-away. In Burgess, the mother wanted to move with the couple's two children to a town about 40 minutes away. After winning in the Superior Court and losing in the District Court of Appeal, the wife successfully convinced the California State Supreme Court that the trial judge made the right decision in allowing her to move with the children.

The Supreme Court held that a custodial parent who is requesting to move with the children only needs to convince the court that the move would be in the children's best interests. The moving parent no longer had to show that there was an urgent need for the children to move or that a dire situation justified the move. To hold otherwise, the Court said, would require it to ignore the reality that people often relocate after they get divorced. Under Burgess, the only limit on the custodial parent's right to move was the requirement that the move could not be based on a "bad" reason, such as to impede the non-custodial parent's time with the child.

Move-away disputes generally arise where there is an already existing child custody order and the custodial parent wants to relocate the child to another area. In its decision, the Supreme Court said that the nature of the existing child custody order would determine the scope of the court's inquiry in ruling on the matter. So, in cases where the custodial parent has the child for a majority of the time, the non-custodial parent has the burden of convincing the court that there is a "change of circumstances" that require the court to award custody to the non-custodial parent. However, where the parents have a shared custodial arrangement, the trial court was required to make a full redetermination of what custody order was in the best interests of the children.

Unfortunately, however, the Court did not define what it meant by a "shared" custodial arrangement. A general definition was developed in several decisions by the California District Courts of Appeal, in the years following Burgess holding that a shared custody arrangement exists if the noncustodial parent had physical custody at least 40% of the time.

In 2004, 5he California State Supreme Court reconsidered the issue in the Marriage of Lamusga, where the Court reaffirmed and further clarified its Burgess ruling.

In Lamusga the mother asked the court's permission to move from California to Cleveland with the couple's two sons. The Superior Court judge denied the mother's request and the Court of Appeal reversed. The Supreme Court reversed the Court of Appeal and thereby restored the Superior Court's denial of the mother's request.
The Court provided a list of factors to be considered when deciding whether to modify a custody order in a move-away situation.

  1. If the move-away request is part of an initial child custody determination, the court's decision is to be based on a determination of what arrangement is in the best interests of the child. (See section 3, below)
  2. If the request is for a modification of an existing custody order, it depends upon the nature of the current custody arrangement.
    • If the parents are sharing physical custody of the child (i.e. at least a 60%/40% sharing) the decision is based on what is in the children's best interests. (See section 3, below)
    • If one parent has physical custody of the child for more than 60% of the time, that parent has a presumptive right to move unless the non-custodial parent successfully convinces the court that
      • the move is being made in bad faith, i.e. is motivated by the custodial parent's desire to reduce or eliminate the other parent's contact with the children, or
      • the move would be detrimental to the welfare of the child. In determining if the move would be detrimental to the child, the court is to consider the effect the move will have on the child's relationship with the other parent after the move.
    • In determining what custodial arrangement is in the children's best interests the court is to consider, among other things, the following:

      • The children's need for stability and continuity.

      • The distance of the move.

      • The age of the children.

      • The children's relationship with both parents.

      • The relationship between the parents, including their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests.

      • The wishes of the children if they are mature enough for such an inquiry to be appropriate.

      • The reasons for the proposed move.

      • The extent to which the parents currently are sharing custody.

      • The parent who is opposing the move-away request has the right to request a child custody evaluation by a court-appointed expert.



Consequently, parents who hope to move away should not act in a way that compromises or undermines the relationship between the child and the other parent. Nor should they speak negatively about the other parent to, or in the presence of, the children. A calendar recording time with each parent should be maintained. A move to a location with extended family nearby is always helpful. And file papers as early as possible and try to avoid an initial custody order with any move-away restrictions for the future and that the initial order provides you with sole physical custody.

Parents objecting to the other parent's move should try to insure that an initial order provides for joint physical custody and language stating that neither can change the children's residence beyond a limited geographical area. And of course, spend as much time as possible with the children and record the time and be involved with all aspects of their lives.

It is necessary to act to protect parental rights and the parent-child reltionship when either parent moves away, regardless of whether the child will be moving, and especially when the move impacts one parent's time spent with the child. Due to the relocation, the co-parenting plan will need to be modified so the parent-child relationship can be maintained for both parents and the child.

A litigated move-away case requires the assistance of experienced family law attorney in your area, so if you are involved in a parental move-away, consult one today.

But rather than litigating the issue, consider working with Collaborative attorneys or a mediator and a Collaborative Child Specialist and possibly Divorce Coaches to help you and your spouse resolve the issue in a child-centered and family-centered way that will honor the needs and interests of all involved.

For more information, visit us at www.lornajaynes.com

Grandparent Visitation in California

January 7, 2012, by

A recent California Court of Appeal opinion upheld a grant of visitation to a grandparent over a father's objection.

Child custody and visitation issues often give rise to the most high conflict disputes in a California divorce. If parents can't agree about living arrangements, vacation schedules and the best educational environment for their child or children, these decisions may very well be made by a family court judge based on his or her assessment of the best interests of the children and the parents' capabilities.

A recent California Court of Appeal Opinion in Hoag v. Diedjomahor considered a less common scenario: the court's grant of visitation to a grandparent over a parent's objection. The maternal grandmother filed for visitation following the death of her daughter, the mother of couple's daughters. The parents had lived at the grandmother's home, as had the mother and children alone during a period of legal separation. After the parents reconciled, the grandmother moved in with the family.

Soon thereafter, the mother filed for divorce, but died about a month later. The grandmother then petitioned for guardianship, claiming that the father was an unfit parent, and the father then countered with evidence of the grandmother's prior drug use and the loss of custody of her own children years before. The court found that no issues of concern were raised from a Child Protective Services investigation and did not grant the guardianship request to the grandmother, but it did grant her temporary visitation.

Several months later, the grandmother petitioned for permanent visitation rights. The court granted the petition based on a mediator's recommendation of a visitation schedule that included three hours of weekly visitation plus every other weekend. The court's decision was based largely on its finding that the father was opposed to reasonable visitation and that his offers were "feigned at best and without any substance."

Appellate Court Upholds Grant of Visitation to Grandmother

The father appealed the judgment for permanent visitation based on his constitutional due process rights. The California Court of Appeal reviewed the case primarily on the standard provided by the U.S. Supreme Court in Troxel v. Granville, which stated that the Due Process Clause does not permit state governments to infringe on the fundamental rights of parents to make child-rearing decisions "simply because a state judge believes a 'better' decision could be made."

On review, the California court emphasized that child-rearing decisions are not immune to judicial review. While the law presumes that a parent is acting in his or her children's best interests in proceedings involving a non-parent who seeks custodial recognition, the father had acknowledged to the trial court that visitation with the children was in the children's best interests. Therefore, denial of visitation was essentially spiteful, and the court's grant of grandparent visitation was proper.

Clearly, the specific circumstances behind every California family law dispute can make a big difference in the outcome. A California divorce lawyer will help a client understand the facts of his or her situation in light of current legal standards.

Visit us at www.lornajaynes.com

New California Law Allows Mature Children to Be Heard in Custody Matters

December 31, 2011, by

Until now, the law in California regarding a child's ability to address the court in his or her parents' custody case has been very limited, and rarely are children able to testify. Courts have typically heard the child's perspective through reports, or from third parties, such as the court-appointed mediators or sometimes therapists.
The California legislature has approved amendments to this process under Senate Bill AB 1050. The new law, which amends California Family Code §3042 is effective January 1, 2012, modifies the rules about children speaking to the court and give children a greater voice in their custody preferences.

"If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation," states Amendment (a) of AB 1050.

Under AB 1050, new procedures will require a court to allow a child to address the court directly regarding his or her preferences, if a child is age 14 or older and so wishes, unless the court determines that doing so is not in the child's best interests (and in that case, the court must state its reasons on the record). If, under the new law, the court precludes a child from testifying in the matter, the court must then provide alternative means of obtaining input from the child and other information regarding the child's preferences (California Family Code §3042(e)).

The new law also clarifies that the court can take into account a child's preferences for child custody and visitation. And the law permits any of several individuals to assist a court in determining whether a child wishes to address the court, including a child's own appointed counsel, an investigator, a mediator, custody evaluator, either parent, or either parent's attorney. The judge may also inquire about whether the child wishes to address the court.

AB 1050 does not prevent a court from allowing a child under age 14 to address the court if the court deems it appropriate, but there is no requirement that the court allow a child to do so.

This provides much more opportunity for mature children to have their preferences heard and to be taken seriously when it comes to matters of custody and visitation, important issues in children's lives.

For more information about the amendments to California Family Code §3042 or any other family law matter, please contact Lorna jaynes by calling (510) 795-6304, or visit the website at www.lornajaynes.com.